1975 PLP 222 (SCMR)

MUHAMMAD AFZAL CHEEMA, J.‑The two petitioners herein Amir Bacha and his brother Moham Bacha were tried by the learned Sessions Judge, Swat, alongwith their third brother Ghafoor Khan and the fourth accused Said Bahar for offences under sections 302/307/323/34, P. P. C. Ghafoor Shah and Said Bahar were acquitted. Amir Bacha alone was convicted under section 302, P. P. C. for the murder of Bahadur Shah and also under section 307, P. P. C. for the attempted murder of Rahim Shah with the concurrent award of a sentence of life imprisonment on each count. He was also awarded a fine of Rs. 6,500 to be paid as compensation to the heirs 'of the deceased under section 544‑A, Cr. P. C. The conviction of Moham Bacha was recorded under section 323, P. P. C. on two counts with a sentence of one year's R. I. and a fine of Rs. 1,000 or three months' R. I. in default of payment thereof on each count. Half of the fine, if realised, was directed to be paid to the heirs of Bahadur Shah deceased.

2. Two separate appeals were preferred by the convict‑petitioners in the High Court. There was a difference of opinion between the learned Judges of the Division Bench, one of whom allowed the appeal and acquitted the petitioners while the other in his dissenting judgment dismissed the appeals. On ground of disagreement, the appeals were referred to a third Judge under section 429, Cr. P. C. who dismissed the appeal of Amir Bacha petitioner while partly accepted that of Moham Bacha reducing his sentence of one year's R. I. to six months' R. I. and the fine of Rs. 1,000 to Rs.

500. It is the judgment of the third learned Judge determinative of the appeals of the petitioners against which leave to appeal has been sought in this petition.

3. Admittedly, the parties despite being residents of the same village had no previous background of enmity. On 26‑5‑1972, an unfortunate quarrel between small children developed into an ugly situation on the following day. While two ladies of the complainant side Mst. Jan Sultana and Mst. Taj Bibi were washing their clothes towards evening time on the khorh (stream), two ladies from the petitioners' side came and abused then on account of the previous quarrel between the children. The altercation between the ladies attracted Bahadur Shah deceased, his brother Rahim Shah injured P. W. and their mother Mst. Zarkashina P. W. In the meantime, the two petitioners of whom Amir Bacha was armed with a knife. Moham Bacha with a hatchet alongwith the two acquitted accused who wielded clubs also rushed to the spot. Moham Bacha petitioner opened the attack hitting Bahadur Shah deceased on the head with the blunt side of the hatchet, followed by Amir Bacha who stabbed the deceased twice in the back. Amir Bacha also gave two knife injuries to Rahim Shah P. W. Ghafoor Shah and Said Bahar the acquitted accused gave club blows to Mst. Zarkashina. Bahadur Shah succumbed to the injuries at the spot while Rahim Shah was removed to the hospital at Saidu Sharif. On their way to the hospital, they were met by Farid Khan, Sub‑Inspector Incharge, Police‑Post Rahim Shah being unconscious, his statement could not be recorded. However, on reaching the scene of the crime, Farid Khan, Sub- Inspector, recorded the report of Mst. Jan Sultana sister of the deceased on the basis of which the case was formally registered at the Police Station.

4. The extension of the Court's jurisdiction in Swat being relatively a recent development, the people of the area do not appear to be readily agreeable to post‑mortem examination for notions of desecration of the dead- body. Accordingly, autopsy was not performed on the dead body of Bahadur Shah. Doctor Ghulam Yousaf, however, found three external injuries on his body: A stab wound about 1 on the left side of the chest about 2 from the mid line in the fifth intercostal space entering deep into chest cavity ; a stab wound 3/4' on the back of the right ride of the chess about 4' from the mid‑line going obliquely under the skin and muscles for about 3 x 4 without penetrating the chest cavity and a depression of the skull on the parietal bone on the right side anteriorly with bleeding from the nose and mouth. Probable cause of death in the opinion of the Doctor was the penetration of the heart by stab wound No.

1. In cross -examination, the Doctor definitely opined that wound No. 1 was entering deep into chest cavity and was dangerous to life. The same Doctor examined Mst. Zarkashina (P. W. 4) and found a contused lacerated wound on the left side of her forehead on the hair‑line with ecchymosis and oedema. The injury was simple. Mian Rahim Shah (P. W. 1) was examin ed by Doctor Pir Muhammad Khan, who found two incised wounds on his body ; one on the back over the vertebral column a little towards the left side 3/4'x 1/8'x 1/8' and another incised wound 4' below the first injury having tile same dimensions.

5. The prosecution case rested mainly on the ocular account furnished by Rahim Shah (P. W. 1), his mother Mst. Zarkashina (P. W. 4) both of whom were injured, Mst. Jan Sultana (P. W. 2) his sister, who was the first informant and Mst. Taj Bibi (P. W. 3) the widow of the deceased, supported by medical evidence. Since Ghafoor Shah and Said Bahar had allegedly given club injuries to Mst. Zarkashina who was found to have sustained only one simple injury on the head which could not be attributed with certitude to a club blow and could have been possibly caused by a fall on a stone, they were given the benefit of doubt and acquitted. Their acquittal was not, however, found to attract the maxim falsus in uno falsus in omnibus which is usually discredited by our Courts as held in Tawaib Khan and another v. The State (P L D 1970 S C 13) accordingly, the trial Judge recorded the convic tion of the petitioners which was upheld by the majority view crystallized in the judgment of the third Judge to whom the case was referred on account of disagreement between the two members of the Division Bench.

6. In support of the petition for leave to appeal, learned counsel tried to adopt the reasoning of the learned Judge of the High Court who favoured the acceptance of the appeals and acquittal of the petitioners. The principal grounds urged were that the investigation had not been conducted in an honest and straightforward manner and there was clear indication that the part of it conducted by Farid Khan, Sub‑Inspector (P. W. 6), who v, as East to arrive at the spot had been deliberately suppressed, the principle of indivisibility of credibility was also invoked and lastly, it was urged that the two petitioners being leading members of the family, graduates and local teachers, had been deliberately and vindictively attributed a major role.

7. Having considered the contentions raised by the learned counsel as also having had the advantage of going through the assessment and reasoning of the three learned Judges in their respective judgments, we are convinced that the majority view proceeds on a correct appreciation of the evidence and proper application of the relevant principles of law Although, as stated earlier, the parties had no previous background of bad‑blood and a sudden quarrel between children had taken an unfortune turn yet, there was ample material to justify not only the conviction of the, petitioners but also the invocation of section 34, P. P. C. which was not applied by the Courts below which aspect of the matter is not relevant for our purposes at this stage. The account furnished by the four eye witnesses, two of whom were injured, appears to be quite natural and convincing. It received full support from the medical evidence. While benefit of doubt was rightly conceded to two of the co‑accused of the petitioners, their acquittal could not justify the condonation of the violence and aggression of the petitioners who reached the spot after having armed themselves and in a purely one‑sided attack, killed one man and seriously injured the other none of them having sustained a scratch. We cannot avoid an impression that they have already been leniently dealt with partly because of the non‑application of section 34, P. P. C. and partly because of the non‑performance of the post‑mortem examination. The head injury on the person of Bahadur Shah deceased attributed to Moham Shah with the blunt side of the hatchet resulting in the depression of the parietal hone would in all probability nave revealed a fracture in the event of autopsy justifying his conviction under section 307, P. P. C.

8. Having gone through the reasoning of the learned judge who took a favourable view for the petitioners, we find that the scepticism expressed by him in regard to the time and venue of the occurrence and the alleged suppression of the so‑called investigation of Farid Khan, Sub‑Inspector if vie may so with respect is based on a priori assumption having no foundation in the record. Any hearsay information received by the Sub‑Inspector the a fight was going on could hardly amount to a First Information Report in the legal sense of the term.

9. In view o: the foregoing discussion, we are convinced that this is not a case cabin g foe is re‑appraisal of the evidence by this Court and in fact the petitioners should thank their stars for having got away so lightly. The petition is , therefore, dismissed. Petition dismissed.